| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
How to Successfully Deal with the Pingdemic
In the week to 21 July, the NHS Covid-19 app sent nearly 700,000 alerts, causing widespread staffing problems as ‘pinged’ employees went into self-isolation. Although the number of alerts has dropped dramatically since, this pingdemic revealed widespread confusion about employers’ obligations when staff are alerted that they have been in close contact with someone who has the virus. Here, I look at what the government’s advice is and answer the most common questions about the app.
Do Employees Who are Pinged Have to Self-isolate?
People are not legally required to self-isolate after receiving a notification from the Covid-19 app. However, they are advised to do so and to take a PCR test. Even if the test is negative, the advice is still to complete the 10-day isolation period.
In contrast, people are obliged by law to self-isolate if they test positive for Covid-19 or NHS Test and Trace identifies them as a close contact of someone who has the virus.
Should We Require those Who Have Been Pinged to Stay Away from Work?
The Prime Minister has said those who have been identified as close contacts are five times more likely to test positive for the virus than other people. Also, scientists have estimated the app prevented up to 2,000 cases of Covid a day in the 3 weeks to 21 July. It would therefore be sensible to follow the government guidance and instruct employees to tell you if they’ve been pinged and to self-isolate. While this may lead to staff shortages, the problem will be even worse if someone doesn’t self-isolate and this causes an outbreak at your workplace.
In practice, some employees may not tell you they’ve been pinged and continue attending work. However, you will at least be doing what you can to protect staff and customers (and to avoid liability if the employee does infect someone).
Can We Force Staff Who’ve Been Pinged to Come into Work?
Given that there’s no legal requirement to self-isolate after being pinged, you may wish to ask or require employees to come into work even if they’ve received an alert. This would be a risky approach. If the employee refuses and you dismiss them or withhold pay, they may bring a claim under the ‘serious and imminent danger’ provisions in the Employment Rights Act 1996 (the ERA). Or if they come into work, colleagues might refuse to come in and bring a similar claim.
Can We Force Staff to Disable the App While at Work?
This is usually inadvisable. You may have an existing policy that employees can’t have their phones on them in certain areas for legitimate operational reasons. However, suddenly instructing them to leave their phones in their lockers or telling them to turn off the app could lead to ERA or constructive unfair dismissal claims. Vulnerable employees might also claim disability or age discrimination.
Can We Require Staff to Use the App?
You may wish to advise employees to use the app but it would be hard to enforce a requirement to install it on a personal phone. If they refuse and you dismiss them, this may well be unfair.
You might require staff to have the app on a work-issued phone as long as you comply with your data protection obligations. However, it will be tricky in practice to force them to tell you if they’re pinged. Increasing numbers of employees are now double vaccinated, you can ask (but again not force) staff to take lateral flow tests and compulsory vaccination for those working with the most vulnerable is imminent. There, therefore, seems to be less and less reason to require employees to install the app.
What if Staff Work Behind a Screen?
NHS guidance says that those working behind a screen are protected from other people and should turn off the app. You will therefore be on firmer ground if you encourage employees to turn off the app while behind a screen or to come into work if they forget to turn it off and are pinged. However, recent research has suggested that screens may offer little protection, so it may be inadvisable to punish a cautious employee who leaves the app turned on in this situation.
What’s the Best Way to Reduce the Risk of Staff Being Pinged?
You can’t prevent employees being pinged outside work. However, despite the change in the government’s Covid safety guidelines, you can continue to encourage staff to keep 2 metres apart at work. This will reduce the likelihood of them coming into close contact with someone who’s infected.
What Exceptions Apply?
The government has recently introduced a limited exemption allowing staff who are identified as a close contact to leave self-isolation to undertake critical work. The exemption is limited to certain sectors and you must have received a letter from a government department on which the employee’s name is listed. Unless they are an emergency worker, the employee must be fully vaccinated (defined as someone who had their second jab at least 14 days previously). To be eligible to avoid isolation, employees must take a daily lateral flow test for 7 days at an approved testing site and the results must be negative. The letter you receive from the government will set out what safeguards you need to put in place to protect staff.
Eligible sectors include energy, civil nuclear, digital infrastructure, food production and supply, waste, water, veterinary medicines, essential chemicals, essential transport, medicines, medical devices, clinical consumable supplies, emergency services, border control, essential defence outputs and local government.
If you believe any of your staff should be exempt from self-isolation, you should contact the relevant government department. You can find out more details here.
What Else is the Government Doing?
On Monday, the government announced it was updating the app, so it would only ping a person’s close contacts from the 2 days before a positive test, rather than from the previous 5 days. This should result in fewer employees receiving alerts.
From 16 August in England, fully vaccinated contacts are expected to become exempt from having to isolate and instead will be advised to take a PCR test. If they take a test and this is positive, they will be legally required to self-isolate, even if double jabbed. Under 18s will also be exempt and advised to take a test, so when the schools go back, this should result in fewer employees having to take time off work to care for a child who is self-isolating. Similar rule changes are due to take place on 7 August in Wales and 9 August in Scotland.
| HEALTH & SAFETY
Paul Smith, Co-Editor-in-Chief, Risk Assessment & Compliance; Editorial Board Member, Health & Safety Adviser |
Law to be Extended to Require Employers to Pay for Workers’ Protective Equipment
With the massive growth of the gig economy, new ways of working are now common. According to a court judgment last year, the law must be updated to reflect the right of all workers to be provided with any personal protective equipment (PPE) they need to do their job safely. This would bring them into line with employees who already have that right. As the Health and Safety Executive consults firms on what the impact could be for them, we set out the details of the proposed changes and show how you can have your say.
PPE includes a wide variety of clothing and equipment designed to protect people from risks. Examples include wet-weather and high vis clothing, safety footwear, gloves, and eye protection. The main rules on PPE are the Personal Protective Equipment Regulations 1992 (PPER) which apply in England, Scotland and Wales. The change now proposed is to add ‘limb b’ workers to PPER so that they receive the same protection as ‘limb a’ workers (employees). Limb b workers (we’ll just call them workers from now on!) are people who work for you under some kind of contract other than an employment contract.
Who’s Affected?
Examples of workers potentially affected by the proposed change are those who generally:
- Carry out casual or irregular work for one or more organisation(s).
- Receive holiday pay, but not other employment rights such as the minimum period of statutory notice.
- Only carry out work if they choose to.
- Have a contract or other arrangement to do work or provide services personally for a reward (the contract doesn’t have to be written). They might swap shifts with someone on a pre-approved list, but they can’t send someone else and then be paid for the work (subcontract).
- Are not in business for themselves (they do not advertise services directly to customers who can then also book their services directly).
What Does the Change Mean in Practice?
So, for example, if you use motorbike delivery drivers who are not employees but meet the criteria above, the proposed change means that you would have to pay for boots, gloves and wet-weather clothing, and potentially provide somewhere for the PPE to be kept/dried when not in use. The costs of any ‘how to use’ training, along with repair, maintenance and replacement, would also fall to you. Strangely, though, crash helmets are not included; this is because they are required by road safety rather than PPE rules.
Also out of scope is PPE required by other health and safety regulations, such as that which protects people from:
- Lead, asbestos and other substances hazardous to health.
- Ionising radiation (e.g. work with X-rays or radioactive materials).
This means that providing dust masks, breathing apparatus or hearing protectors will not be affected by the proposed change.
What Questions are Affected Employers being Asked?
The consultation seeks information on issues such as the types of PPE that are used and how often they are replaced, what costs employers incur as a result, and how many workers are likely to become entitled to PPE if the proposed change is implemented.
How to have Your Say
Access the online survey here. The deadline for taking part is Sunday 15 August.
Other Action Points
- Treat PPE as the last resort: only use it where other safeguards do not protect, or protect sufficiently.
- Give people any training/instruction they need to use PPE properly: they then have a legal duty to use it in line with the training/instruction you have provided.
- Ensure managers and supervisors monitor that PPE is worn when it should be, and worn correctly. (Many types of PPE require correct fit/adjustment for full protection).
Remember that the change currently proposed relates only to workers who are not employees. If you only have employees, you are already covered by the PPE Regulations and the proposed change will not affect you.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
CJRS Grant Reduced Further: Your Key Points
The Coronavirus Job Retention Scheme (CJRS) continues to be available to provide help, in the form of grant support, to furloughed and flexibly furloughed staff who are net yet able to return to work on their usual hours. However, as the scheme winds down and the Government support is cut back, the amount that employers must contribute is further increased.
August Grants
For August 2021, as previously, employers who are furloughed or flexibly furloughed, should be paid 80% of their usual pay for their unworked hours. This is subject to the cap of £2,500 per month.
Since 1 July 2021, employers have been required to meet some of the cost of the grant paid to employees – for July 2021 this was 10% of the employee’s usual pay for their unworked hours. For July, the grant was worth 70% of the employee’s usual pay for their unworked hours (capped at £2,187.50 per month).
However, for August 2021, the employer can only claim a grant of 60% of the employee’s usual pay for their unworked hours. The grant is capped at £1,875. The reduction in the claimable grant means that the employer will need to meet the cost of 20% of the employee’s usual pay (subject to the operation of the cap). The employer contribution for August is, therefore, one-quarter of the amount paid to the employee for their furloughed hours; the remaining three-quarters is covered by the grant.
The maximum amount that the employer will need to cover is £625 per employee for August. This will be the case where the employee receives the maximum grant of £2,500.
Example
An employee is furloughed throughout August 2021. The employee’s usual pay is £1,800 per month.
The employee will receive a grant of £1,440 (80% of £1,800) for August 2021. As this is less than £2,500, the cap does not apply.
The employer can claim a CJRS grant of £1,080 (60% of £1,800) from the Government.
The employer must fund the difference of £360 (£1,400 – £1,080).
Employer National Insurance and Pension Contributions
In addition to meeting the cost of 25% of the amount paid to the employee, the employer must also fund the employer’s National Insurance due on grant payments, and also any employer pension contributions that are due under auto-enrolment.
Claim Deadline for July
The normal deadline for making a claim under the CJRS is the 14th of the following month. However, where the 14th falls on a weekend or a bank holiday, the deadline is extended until the next working day.
As 14 August 2021 falls on a Saturday, the deadline for making a claim for July 2021 is Monday 16 August 2021.
Beyond the CJRS
Employers with employees who are still on furlough will need to decide what they are going to do when the CJRS comes to an end on 30 September 2021, and whether they can bring the employee back to work, either on their usual hours or on reduced hours, or whether they will have no option but to make the employee redundant.